LOCK UP AND VOTING AGREEMENT
Exhibit 10.2
THIS LOCK UP AND VOTING AGREEMENT (this “Agreement”) is made and entered into as of April
10, 2011, by and among Parkway Properties, Inc., a Maryland corporation (the “REIT”),
Parkway Properties LP, a Delaware limited partnership (the “OP”), and the undersigned
holders (each a “Holder” and collectively, the “Holders” ) of units of limited
partnership interest of the OP (“OP Units”) or, upon any redemption of such OP Units, other
than for cash, shares of common stock of the REIT, $0.001 par value (“Common Stock”).
RECITALS
WHEREAS, the REIT, the OP, Eola Office Partners LLC, a Florida limited liability company
(“EOP”), Eola Capital LLC, a Florida limited liability company (“EOC”), the members
of each of EOP and EOC and certain beneficial owners of interests in EOC are parties to a
Contribution Agreement, dated as of April 10, 2011 (the “Contribution Agreement”), which,
subject to the terms and conditions of the Contribution Agreement, provides for the contribution of
(x) all of the membership interests of EOP to the OP, and (y) all of the membership interests of
EOC that are owned by Banyan Street Office Holdings LLC, a Florida limited liability company
(“Banyan”), to the OP (collectively, the “Contribution”), and the issuance,
pursuant to the Contribution, of OP Units to the members of EOP and Banyan (or the members of
Banyan);
WHEREAS, the Holders are entering into this Agreement as holders of OP Units, which they will
receive in connection with the Contribution Agreement and which may be redeemed, pursuant to the
terms of the Amended and Restated Agreement of Limited Partnership of the OP (the “Partnership
Agreement”), for cash or, at the REIT’s election, shares of Common Stock;
WHEREAS, as a condition and inducement to the REIT and the OP to enter into the Contribution
Agreement, the REIT and the OP have required that the Holders agree to certain matters regarding
the ownership, retention and voting of Shares (as defined below); and
WHEREAS, capitalized terms used in this Agreement that are not otherwise defined shall have the
meanings given to them in the Contribution Agreement.
NOW THEREFORE, in consideration of the premises and covenants herein contained, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
AGREEMENT NOT TO TRANSFER
AGREEMENT NOT TO TRANSFER
1.1 Transfer and Encumbrance. Except as specifically set forth in this Agreement, from the
date of this Agreement until the first anniversary of the closing of the Contribution (the
“Lock Up Period”), each Holder agrees not to, without the prior written consent of the REIT
or the OP, (A) directly or indirectly, sell, transfer, tender, assign, pledge, encumber, contribute
to the capital of any entity, hypothecate, give or otherwise dispose of, or create or permit to
exist any encumbrance of any nature whatsoever with respect to (i) any shares of capital stock of
the REIT, or any securities of the OP, including OP Units, owned of record or beneficially held by
such Holder as of the date of this Agreement, or (ii) any capital stock of the
REIT (including any options, warrants or other rights to acquire shares of capital stock of the
REIT), and including but not limited to any preferred stock, Common Stock and OP Units received or
to be received pursuant to the Contribution, or that the Holder shall purchase, or with respect to
which the Holder shall otherwise acquire beneficial ownership (including by reason of any stock
split, reverse split, stock dividend, combination, reorganization, recapitalization or other like
change, conversion or exchange of shares, or any other change in the corporate or capital structure
of the REIT or the OP) or over which the Holder shall exercise voting power, either before or after
the execution of this Agreement and during the Lock Up Period, or any interest therein (any such
shares of preferred stock, Common Stock and OP Units or other rights with respect thereto as
described above, collectively being referred to herein as the “Shares”), or
(B) make any offer or enter into any agreement, contract, option or other understanding or
arrangement relating thereto, or consent to any of the foregoing, at any time during the Lock Up
Period; provided that, in addition to the provisions related to the termination of this Agreement
in Article IV hereof, the Lock-Up Period, and all rights and obligations of the parties
with respect to this Section 1.1 only, shall immediately terminate and be of no further
force and effect upon the earlier to occur of (A) a Lock-Up Breach (as defined in that certain
Master Transaction Agreement, dated April 10, 2011 by and among the REIT, the OP, EOP, EOC, Xxxxx
X. Xxxxxxxx, Xxxxxxx Prio Touzet and Xxxxx X. Xxxxx, III), and (B) a Principal Termination Event
(as defined in the Contribution Agreement).
1.2 Permitted Transfers and Encumbrances. Notwithstanding the provisions of Section
1.1, during the Lock Up Period, the REIT, the OP and the general partner of the OP agree that
(A) Banyan Street Office Holdings LLC (“Banyan Street”) may distribute to its members,
Xxxxxxx Prio Touzet and Xxxxx Xxxxx, the OP Units issued to Banyan Street pursuant to the
Contribution, (B) a Holder may pledge to third parties up to seventy-five percent (75%) of the
aggregate number of such Holder’s shares of Common Stock and OP Units (including a transfer to such
third party in connection with the exercise of its remedies under such pledge),
(C) a Holder may redeem such Holder’s OP Units for shares of Common Stock pursuant to the terms of
the Partnership Agreement; provided that any and all shares of Common Stock received by a Holder
upon such redemption shall continue to be subject to the terms and conditions of this Agreement,
and (D) a Holder may transfer shares of Common Stock or OP Units to any trust for the direct or
indirect benefit of such Holder or the immediate family of such Holder (for purposes of this
Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin), and (E) each of the Holders may transfer OP Units (or shares of Common
Stock, if redeemed) among each other, so long as such transfers are made in compliance with
applicable securities laws, in each case, without any further consent of the REIT or the OP or the
general partner of the OP; provided that, in each case, the proposed transferor shall notify the
REIT not less than three (3) business days in advance of any proposed transfer of pledge; and
provided further that Xxxxxxx Prio Touzet, in the case of clause (A), and any permitted transferee,
in the case of clauses (D) and (E) only, agree to be bound by the terms and conditions of this
Agreement.
ARTICLE II
AGREEMENT TO VOTE SHARES; GRANT OF PROXY AND STANDSTILL
AGREEMENT TO VOTE SHARES; GRANT OF PROXY AND STANDSTILL
2.1 Agreement to Vote Shares. During the period commencing on the date of this Agreement
and terminating on the third (3rd) anniversary of the closing of the Contribution
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(the “Voting Period”), at every meeting of the stockholders of the REIT or the
partners of the OP called with respect to any of the matters described below, and on every action
or approval by written consent of the stockholders of the REIT or the partners of the OP or in any
other circumstance in which the vote, consent or approval of the stockholders of the REIT or the
partners of the OP, in their capacity as the Holders or partners, is sought, each Holder shall
appear at the meeting or otherwise cause any and all Shares to be counted as present thereat for
purposes of establishing a quorum and agrees to vote (or cause to be voted) any and all Shares or
give consent with respect thereto, or cause consent to be given with respect thereto, as follows:
with respect to (a) any tender offer or exchange offer, any merger, acquisition transaction or
other business combination involving the REIT or the OP or any of their subsidiaries or Affiliates
or any of their respective assets or properties, in the manner recommended by the board of
directors of the REIT (the “Board”), including with respect to any recommendation made by
the Board of the REIT, acting as general partner of the OP, with respect to any vote by partners of
the OP or (b) in the election of directors of the REIT, in favor of nominees recommended by the
Board. During the Voting Period, each Holder agrees that such Holder will not (A) grant any proxy,
power-of-attorney or other authorization, other than the Proxy, as described below, in or with
respect to any Shares, or take any other action that would in any way restrict, limit or interfere
with the performance of the Holder’s obligations hereunder, or (B) directly or indirectly, solicit,
initiate, seek, encourage or support or take any other action the effect of which would be
inconsistent with or violative of any provision contained in this Section 2.1. The undersigned Holders may vote the Shares on all other matters.
2.2 Exclusive Grant of Proxy. Contemporaneously with the execution and delivery of this
Agreement, each Holder is delivering to the REIT a duly executed proxy in the form attached hereto
as Annex A (the “Proxy”), which shall be irrevocable during the Voting Period,
solely with respect to the matters set forth in Section 2.1. Except for the Proxy, no
Holder shall, during the Voting Period, directly or indirectly, grant any proxy, irrevocable proxy
or power of attorney with respect to any of the Shares, deposit any of the Shares into a voting
trust, or enter into a voting agreement or arrangement with respect to voting any of the Shares
(each a “Voting Proxy”). In addition to the representations and warranties set forth below,
each Holder represents and warrants to the REIT and the OP that such Holder has not granted any
Voting Proxy with respect to any of the Shares with respect to the matters set forth in Section
2.1, and if any Voting Proxy has been granted to any person for such purpose, any such Voting
Proxy is hereby revoked by the Holder.
2.3 Stockholder Capacity. Each Holder is entering into this Agreement in his or her
capacity as the record and beneficial owner of such Holder’s Shares. Notwithstanding any other
provision of this Agreement, including without limitation Section 2.1, Section 2.2
and Section 3.5, to the extent a Holder serves as an officer or director of the REIT,
nothing contained herein shall limit the ability of such Holder to exercise his ordinary and
customary duties as an officer or director of the REIT, including, without limitation, the exercise
of such Holder’s fiduciary obligations to the REIT and its stockholders.
2.4 Standstill. During the Voting Period, each Holder hereby agrees that neither Holder nor
any of its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) will (and neither Holder nor such Holder’s affiliates will
assist, provide or arrange financing to or for others or encourage others to), directly
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or indirectly, acting alone or in concert with others, unless specifically requested in writing or
approved in advance by the Board:
(i) acquire or agree, offer, seek or propose to acquire (or request permission to do so), ownership
(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange
Act) of any material portion of the assets or businesses of the REIT or its affiliates or any
securities issued by the REIT or its affiliates other than as contemplated pursuant to the
Contribution Agreement, or any rights or options to acquire such ownership (including from a third
party), or make any public announcement (or request permission to make any such announcement) with
respect to any of the foregoing; provided, however, that Xxxxx X. Xxxxxxxx and Xxxxxxx Prio Touzet
(together with their affiliates) shall be entitled to acquire, in the aggregate, ownership of a
number of shares of Common Stock equal to no greater than one percent (1%) of the total number of
shares of Common Stock then outstanding; or
(ii) propose or enter into, directly or indirectly, any merger, consolidation, recapitalization,
business combination or other similar transaction involving the REIT or any of its affiliates; or
(iii) form, join or enter into a group (within the meaning of Section 13(d)(4) of the Exchange Act)
with respect to any voting securities of the REIT or any of its affiliates; or
(iv) enter into any discussions, negotiations, arrangements or understandings with any third party
with respect to any of the foregoing, or otherwise advise, assist or encourage any other persons in
furtherance of any of the foregoing, in each case, other than in connection with the performance of
such Holder’s duties as a member of the Board or any committee thereof, if authorized by such Board
or a duly authorized committee.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE HOLDERS
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE HOLDERS
Each Holder represents, warrants and covenants to the REIT and the OP as follows:
3.1 Ownership of Shares. Upon closing of the Contribution, the Holder will be the sole
beneficial and record owner and holder of the Shares indicated on the signature pages hereto, which
at all times during the Voting Period, will be free and clear of any Liens except as set forth in
Section 1.2 and except for any Liens imposed by federal or state securities laws.
3.2 Authority; Due Execution. The Holder has full power and authority (including, if
applicable, full corporate, partnership, limited liability company or trust power and authority) to
make, enter into and carry out the terms of this Agreement. The Holder has duly executed and
delivered this Agreement and (assuming the due authorization, execution and delivery of this
Agreement by the REIT and the OP) this Agreement constitutes a valid and binding obligation of the
Holder.
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3.3 Non-Contravention. The execution and delivery of this Agreement by the Holder does not,
and the performance of and under this Agreement by the Holder will not (i) to the Holder’s actual
knowledge (without any duty of inquiry), conflict with or violate any federal, state, local,
municipal, foreign or other law, statute, constitution, principle of common law, resolution,
ordinance, code, order, edict, decree, rule, regulation, ruling or requirement issued, enacted,
adopted, promulgated, implemented or otherwise put into effect by or under the authority of any
government entity, or (ii) result in, give rise to or constitute a violation or breach of or a
default (or any event which with notice or lapse of time or both would become a violation, breach
or default) under any of the terms of any material agreement or other instrument or obligation by
which the Holder or the Shares may be bound. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the Holder is settlor or trustee or any other
person or Governmental Authority whose consent, approval, order or authorization is required by or
with respect to the Holder or the Shares for the execution, delivery and performance of this
Agreement by the Holder.
3.4 Power. The Holder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Articles I and II hereof, sole power of disposition and sole
power to agree to all of the matters set forth in this Agreement, in each case with respect to all
of the Holder’s Shares, with no limitations, qualifications or restrictions on such rights.
3.5 No Solicitations. Unless specifically authorized by vote of a majority of the directors
of the REIT, during the Voting Period, the Holder, will not, and will not permit any entity under
the Holder’s control, to: (i) solicit proxies of the stockholders of the REIT with respect to (a)
any merger, consolidation, sale of assets, business combination, reorganization or recapitalization
involving the REIT or the OP or their subsidiaries or Affiliates, (b) any transaction that would
result in a change of control of the REIT, or (c) any liquidation or winding up of the REIT or the
OP; (ii) otherwise encourage or assist any party in taking or planning any action that could result
in any of the events described in (a), (b) or (c) above; (iii) initiate vote or action by consent
of securities holders of the REIT or the OP in support of any of the events described in (a), (b)
or (c) above; or (iv) become a member of a “group” (as such term is used in Section 13(d) of the
Securities Exchange Act of 1934, as amended) with respect to any voting securities of the REIT or
the OP with respect to any of the events described in (a), (b) or (c) above; provided, however, to
the extent a Holder serves as an officer or director of the REIT, nothing contained in this
Section 3.4 shall limit the ability of such Holder to exercise his ordinary and customary
duties as an officer or director of the REIT, including, without limitation, the exercise of such
Holder’s fiduciary obligations to the REIT and its stockholders.
ARTICLE IV
TERMINATION
TERMINATION
This Agreement, and all rights and obligations of the parties hereunder, shall terminate on the
earliest of (i) the expiration of the Voting Period, (b) the termination of the Contribution
Agreement, (c) the agreement of the REIT, the OP and the Holders to terminate this Agreement, or
(d) with respect to any Shares sold or transferred by a Holder not in violation of Section 1.1
hereof, automatically upon the sale or transfer of such Shares. Nothing in this Article
IV shall
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relieve any party of liability for any breach of this Agreement; provided, that Section5.4
herein shall be the REIT’s and the OP’s sole remedy for a breach of this Agreement by a Holder.
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
5.1 Severability. If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, then the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
5.2 Binding Effect and Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective successors.
Neither this Agreement nor any of the rights, interests or obligations of the parties hereto may be
assigned by the parties without prior written consent of the other parties hereto.
5.3 Amendments and Modification. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement executed by the parties
hereto.
5.4 Specific Performance; Injunctive Relief. The parties hereto acknowledge that the REIT
and the OP will be irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of the Holders set forth herein. Therefore, it is
agreed that the REIT and the OP shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to the REIT or the OP at
law or in equity and each Holder hereby irrevocably and unconditionally waives any objection to the
REIT or the OP seeking so to enforce such covenants and agreements by specific performance,
injunctive relief and other means. Such right to enforce this Agreement by specific performance or
injunctive relief shall be the REIT’s and the OP’s sole remedy upon a breach of this Agreement by a
Holder. If any action, suit or other proceeding (whether at law, in equity or otherwise) is
instituted concerning or arising out of this Agreement or any transaction contemplated hereunder,
the prevailing party shall recover, in addition to any other remedy granted to such party therein,
all such party’s reasonable costs and attorneys fees incurred in connection with the prosecution or
defense of such action, suit or other proceeding.
5.5 Governing Law; Consent to Jurisdiction. All matters arising out of or relating to this
Agreement and the transactions contemplated hereby (including without limitation its
interpretation, construction, performance and enforcement) shall be governed by and construed in
accordance with the laws of the State of Maryland. In any action or proceeding between the parties
arising out of or relating to this Agreement or any of the transactions contemplated hereby, each
party: (i) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and
venue of any State Court located in the city of Baltimore, Maryland (or, in the case of any claim
as to which the federal courts have exclusive subject matter jurisdiction, the Federal court of the
United States of America, sitting in the District of Maryland); (ii) agrees that all claims in
respect of such action or proceeding must be commenced, and may be heard and determined,
exclusively in such Maryland court (or, if applicable, such Federal court); (iii) waives, to the
fullest extent it may legally and effectively do
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so, any objection which it may now or hereafter have to the laying of venue of any such action or
proceeding in such Maryland State court (and, if applicable, such Federal court); and (iv) waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in such Maryland State court (or, if applicable, such Federal court).
5.6 Entire Agreement. This Agreement contains the entire understanding of the parties in
respect of the subject matter hereof, and supersedes all prior negotiations and understandings
between the parties with respect to such subject matter.
5.7 Counterparts. This Agreement may be executed in two or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
[Signature Pages Follows.]
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IN WITNESS WHEREOF, the parties have caused this Lock Up and Voting Agreement to be duly executed
as an instrument under seal on the day and year first above written.
| PARKWAY PROPERTIES, INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxx | ||||
| Title: President and CEO | ||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: Xxxxxxx Xxxxxxx | ||||
| Title: Executive Vice President and Chief Financial Officer | ||||
| PARKWAY PROPERTIES LP | ||||||
| By: | Parkway Properties General Partners, Inc., general partner |
|||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Executive Vice President and Chief Investment Officer | ||||||
| By: | /s/ M. Xxxxxx Xxxxxx | |||||
| Name: M. Xxxxxx Xxxxxx | ||||||
| Title: Senior Vice President and Fund Manager | ||||||
Signature Page to Lock Up and Voting Agreement
| HOLDERS: BANYAN STREET OFFICE HOLDINGS LLC |
||||
| By: | /s/ Xxxxxxx Prio Touzet | |||
| Name: Xxxxxxx Prio Touzet | ||||
| Title: Managing Member | ||||
| /s/ Xxxxxxx Prio Xxxxxx | ||||
| Xxxxxxx Prio Touzet | ||||
| /s/ Xxxxx X. Xxxxx, III | ||||
| Xxxxx X. Xxxxx, III | ||||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| Xxxxx X. Xxxxxxxx | ||||
| /s/ Xxxx Xxxx | ||||
| Xxxx Xxxx | ||||
| /s/ Xxxxx Xxxxxxx | ||||
| Xxxxx Xxxxxxx | ||||
| /s/ Xxxx X. Xxx | ||||
| Xxxx X. Xxx | ||||
Signature Page to Lock Up and Voting Agreement
